Communicated on 8 July 2014

FIRST SECTION

Application no. 57724/11 Laman BABAYEVA against Azerbaijan lodged on 7 September 2011

STATEMENT OF FACTS

The applicant, Ms Laman Babayeva, is an Azerbaijani national, who was born in 1981 and lives in Ganja, Azerbaijan. She is represented before the Court by Mr Z. Guliyev, a lawyer practising in Azerbaijan.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant and S. got married on 3 February 2002. They had two children, a son (F.) born on 21 December 2002 and a daughter (E.) born on 18 August 2007 .

On 22 May 2009 S. ’ s nephew (B.) suspected that the applicant had an affair. He came to the applicant ’ s flat, where he met J. and killed him, suspecting he was the applicant ’ s lover.

In May 2009 the applicant and S. separated and the applicant moved to her parents ’ house together with her children and lived there since then.

On 26 November 2009 B. was convicted of murder and sentenced to eight years ’ imprisonment.

According to the applicant, S. had an affair with another woman so she decided to apply for divorce. On 12 January 2010 the applicant applied for divorce and requested division of their matrimonial property (a car and a flat) and payment of maintenance for the children. S. lodged a counter claim asking for divorce and that the children reside with him (custody).

The Nizami District Court of Ganja requested the Commission on Custody and Guardianship at the auspices of the Nizami District Executive Authority (“the Commission”) to provide an expert opinion. The first opinion of the Commission of 1 March 2010 stated that both the father ’ s and the mother ’ s current households were suitable for raising the children and that the Commission would not mind if the court awarded the custody of children under ten years old to their mother according to Article 52 of the Family Code (provision concerning the inquiry into a child ’ s opinion in matters affecting his or her interests).

It appears that the Nizami District Court requested for further expert opinions from the Commission. In their subsequent two opinions of 2 April 2010 and of 5 July 2010, the Commission stated that the conditions of both households were fit for upbringing the children and left the decision on custody to the discretion of the court. The Nizami District Court concluded that the Commission failed to answer its questions and left the matter to the court ’ s discretion and, therefore, disregarded the opinions of 1 March 2010, 2 April 2010, and 5 July 2010.

The Nizami District Court also examined transcripts of telephone conversations between the applicant and J. and observed that they disclosed phrases that were not compatible with “ethical norms and morals”. O n the basis of the telephone transcripts and the judgment of 26 November 2009 concerning B ’ s conviction, the court found that the applicant had an intimate affair with J and she “led an unstable life style”, and that “her actions were in compatible with ethical norms”.

The Nizami District Court concluded that since the applicant had an “unstable” life style, custody should be awarded to S., the father, in order to ensure that children are brought up in a morally healthy environment. It also referred to Article 60.4 of the Family Code as a legal basis. That provision provided that the custody was to be determined in accordance with the children ’ s rights and best interests, their opinion and other factors (their attachment to brother and sisters, and to parents; the parents ’ moral and other personal qualities; the children ’ s age; their development and relevant conditions for their upbringing).

On 30 July 2010 the Nizami District Court pronounced the divorce, divided the flat equally between the applicant and S., and awarded the custody of the children to S., and dismissed the applicant ’ s claims in part concerning the maintenance payment.

The applicant lodged an appeal, arguing that the judgment of 30 July 2010 was unsubstantiated; that the court had unlawfully disregarded the Commission ’ s first opinion and failed to properly assess the subsequent two opinions confirming the first one; that the court ’ s acceptance as evidence of telephone transcripts and findings based on them breached her private life; that the court accepted evidence (telephone transcripts) in breach of the requirements of the Code of Civil Procedure.

On 14 October 2010 the Ganja Court of Appeal upheld the Nizami District Court ’ s judgment of 30 July 2010, reiterating the first-instance court ’ s reasoning.

The applicant appealed, claiming that the courts did not ask for children ’ s opinion in accordance with Article 52 and 60.4 of the Family Code, that S ’ s true intention for seeking custody was to avoid the maintenance payment, that he did not care for the children and that he had not provided for them financially since they had been separated. She also maintained in her submissions that since they had separated the children had been in her sole care and that she had taken good care of them, sufficiently providing for their well-being. Taking them away from her care and placing them in a different environment would cause great harm to their healthy development. She further argued that even if it had taken place, her alleged intimate affair with J. should not be a ground for limiting her custodial rights. She also referred to provisions on equality between men and women, alleging that S. was also in a relationship with another woman during their marriage.

On 10 March 2011 the Supreme Court upheld the Court of Appeal ’ s judgment reiterating the same reasoning.

COMPLAINTS

Relying on Article 6 § 1 of the Convention, the applicant complains that the decisions of the national courts concerning custody of her children were not sufficiently reasoned; that the courts disregarded the Commission ’ s opinions; that the courts did not ask the children ’ s opinion and did not sufficiently assess the children ’ s best interests when deciding their custody in accordance with the national law.

The applicant complains under Article 8 of the Convention that the court ’ s acceptance as an evidence of transcripts of personal telephone conversations and statements made by the courts based on those transcripts that she had an intimate affair with J. constituted an unjustified interference with her private life and damaged her reputation.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for her family life, within the meaning of Article 8 § 1 of the Convention, as a result of the decision terminating her custody and awarding it to the children ’ s father? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? In particular, did the domestic courts strike a fair balance between the interests of the child and those of the applicant (in terms of her rights under Article 8)?

2. Has there been an interference with the applicant ’ s right to respect for her private and family life and correspondence, within the meaning of Article 8 § 1 of the Convention as a result of (1) the courts ’ acceptance of the transcripts of telephone conversations and (2) the statements of the court finding that she had an intimate affair with J. and that her actions were “not compatible with ethical norms” and that she led an “unstable life style”. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Were the telephone transcripts included in the case file, read at the hearing or otherwise disclosed at any part of the proceedings? What was the source of the telephone transcripts and how were they obtained? Did the court verify the origin of this evidence? Which provisions of the national law served as a basis for admitting and relying on this evidence in the judicial proceedings in this case?

4. The parties are requested to provide copies of the Commission on Custody and Guardianship ’ s opinions; a copy of the judgment of 26 November 2009; the application by the applicant requesting the exclusion of the telephone transcripts from the file and the court ’ s decision (if any) in this respect.